Mukul Sharma

The police and the administration all over India seem to want laws that enable them to prevent the grant of bail, extract confessions, inflict torture, and yet continue with impunity.

In the context, and under the pretext, of rising terrorism, violence and insecurity, our State and Central governments have been openly flouting the absolute ban on torture and other cruel, inhuman or degrading treatment, fake encounters and disappearances. In Chhattisgarh, evidence of large-scale violence and killings by the state, or its supported force, Salwa Judum, as well as the arrest of human rights activists, continues to haunt us. In Bihar and Jharkhand, where cruelty and brutality are already common, the governments are encouraged by a climate of tolerance and acceptance of such abuses. In other States as well, draconian laws and abusive practices are being regularly introduced.

After Chhattisgarh, Maharashtra and Madhya Pradesh, Uttar Pradesh has now fallen in the same line, introducing the Uttar Pradesh Control of Organised Crime Bill 2007 (UPCOC) in the Assembly. Its stated aim is “to eliminate organised crime in U.P., so that common people could be saved from the clutches of the mafia and hardened criminals, operating as organised syndicate.” The bill will be passed soon.

The rationale behind and defence of this bill, as well as its nature and contents, are similar to the Maharashtra Control of Organised Crime Act 1999 (MCOCA), the Chhattisgarh Special Public Security Act 2006, and the Madhya Pradesh Special Areas Security Act 2001. These Acts provide an effective smokescreen for governments to authorise arbitrary detentions, torture, unfair trials, suppression of political dissent, and selective persecutions, and they know that any questioning, criticism and monitoring will be muted because of these Acts.

The MCOCA is actually the model, in letter and in spirit, for the Uttar Pradesh bill. The MCOCA came in the statute book as a replacement for the infamous Terrorist and Disruptive Activities (Prevention) Act that was allowed to ‘lapse’ in 1995, in the face of widespread opposition to its draconian provisions and use. The Maharashtra government was the only government at that time which enacted a replacement for the TADA, while similar draft legislation were withdrawn in Tamil Nadu, Andhra Pradesh, Jammu and Kashmir and at the Centre, because of popular opposition.

The MCOCA has been applied to arrest doctors, film personalities, a judge, journalists, workers, youth and people of all backgrounds. While organised crime, contract killings and money-laundering continue in Mumbai, this law has emerged as one of the potent tools in the hands of the police to threaten and terrorise people fighting for economic and social justice.

A brief reading of the UPCOC Bill is required here: On the first registration of a crime, the accused would not be able to obtain ex parte bail. On registration of a case for the second time, the offence would be non-bailable. All-powerful State and district-level Organised Crime Control Authorities/Committees, under the chairmanship of the Principal Secretary of Home and District Magistrates, will be formed to implement the Act. A State-level Authority under the chairpersonship of a retired High Court judge will hear appeals against the orders passed by the State-level authority within 30 days. However, the Director-General of Police and an officer of the level of the Principal Secretary will also be members of the Appellate Authority. And the punishment proposed, like under the MCOCA, is: “If such an act has resulted in the death of any person, it will be punishable with death or imprisonment for life, and [the offender] shall also be liable to a minimum fine of Rs.10 lakh” [sub-section (a) of Section 4(1) of the UPCOC Bill]. What does this imply? An eye for an eye, a death for a death! It relies on fear to achieve its aims. It denies and destroys human dignity. It assumes that the end justifies the means.

Our State governments already have a number of laws. The crimes are registered not only under the Indian Penal Code (IPC). There is frequent use of the National Security Act, the Arms and Explosives Act, the Narcotics Act, the Gangster Act and others. In U.P., there is also the Uttar Pradesh Control of Goondas Act, 1970.

A survey of the crime statistics of the U.P. police shows that 1,18,195 cases were registered under the IPC in 2006, as against 1,17,748 in 2005. In addition, 411 cases were registered under the National Security Act; 2,117 under the Gangster Act; 11,816 under the Goondas Act; and 39,184 under the Arms Act, among others. Yet we are asked to believe that without new stringent laws and their use, we cannot be safe. The story of Maharashtra and Chhattisgarh is very much applicable to U.P. The police and the administration all over India seem to want Acts that enable them to prevent grant of bail, extract confessions, inflict torture, and yet continue with impunity.

The rule of law is the cornerstone for the protection of people’s rights and systems of governance, based on the values of our Constitution. Yet, domestic institutions at the Centre and in the States, which should uphold the rule of law, are often seriously flawed. For example, overall our criminal justice system is undermined by institutionalised discrimination, lack of resources and corruption. In States such as Gujarat, the administration of justice has been manipulated to perpetuate the domination of political elites or religious groups. The result is continuing widespread violation of people’s rights. Our history of controlling crime and violence is also a history of failures and shortcomings in the administration of justice.

Reform of justice system

Unlike the new emphasis on the social sector in our country, there is still a lack of effort and resources in reforming and strengthening the justice sector. Reform of the justice system involves exposing the gaps and loopholes in our legislation that allow people and their entitlements to be abused with impunity, and working for the removal of such legislation and procedures which are a hindrance to the realisation of democracy and justice. It also involves impartial judicial institutions and their accountability, and promoting a vision of policing, which sees the protection of human rights as integral to public security.

Fresh opportunities came when the UPA government was formed and its common minimum programme evolved. With the repeal of the POTA, and a move towards police reforms, some steps were initiated to provide redress for the failure of the domestic justice systems. However, these moves remain embryonic and contested.

With the introduction of the Human Rights Act to monitor state compliance with human rights standards, the government tried to fill a serious gap. However, it is too little too late and it also faces a crisis of capacity. A revamped justice system, increased monitoring mechanisms, and accountability platforms would provide safety nets in the fight against criminals and terrorists. Otherwise, we will have shameless defence of encounter killings, disappearances and murders by the States.

The first decade of 2000 saw many unequivocal signs of emergence of a countrywide justice movement, responding diversely to injustices related to trade rules, natural resources, women, Dalits, globalisation, liberalisation and many other issues. Those parties and governments, particularly those which swear by the sarva jan and aam admi (common man), will need to address the role played by poverty stigma and marginalisation in denying access to justice to a majority. None of us can be safe from arbitrary arrests, sexual abuse, violent attacks or starvation without all rights and justice. These rights and justice have to come to us undiluted, devoid of any draconian and arbitrary Acts based on a fear psychosis and assertion of power.

(Mukul Sharma is Director, Amnesty International India.)